From 2008 to 2010 Samsung was content to copy, but by 2011 it wanted to beat Apple

Apple, Inc.'s (AAPL) lawyers have been busy sifting through Samsung Electronics Comp., Ltd.'s (KSC:005930) emails -- well the ones that weren't destroyed, at least -- searching for hints that could steer the jury into the perception that Samsung was "copying" Apple's patented iPhone/iPad features and designs.

I. Context When Considering Apple v. Samsung

Overarching questions hover over the case -- for example, whether Apple's patents on seemingly trivial software features should be valid (this approach is not used by video game or web designers, who freely imitate each other to enhance their product, and has not harmed competition or industry evolution).

U.S. Patent Law forbids patenting of abstract ideas, so it becomes a question of whether simple animations are patentable. Likewise, many of the animations (e.g. the "bounce animation") mimic nature (in that case, transitive responses) so the question is whether the graphical flourish is non-patentable because it's animation/imitation of a natural phenomenon.

Also, questions surround whether a company should be able to patent a "minimalist" tablet/smartphone design. Apple's design patents U.S. Design Patent No. D618,677, D593,087, and D504,889 have little accompanying text, so it is Apple's lawyers' interpretation that they claim the patent grants a monopoly on "minimalist", clean designs. That is a highly questionable interpretation.

However, Apple does do a good job via documents it dug up from Samsung's surrendered data dumps in establishing that circa-2010 Samsung was clearly fixated on copying Apple's hardware, design, and software. The documents also indicate a shift in 2011, where Samsung's discussion changes from being like Apple to trying to beat Apple.

In a way this is good for each company. While the wealth of evidence supporting copying may lead to infringement findings, unless Apple's patents are invalidated, the evidence which supports Samsung is now no longer interested in merely being "like Apple" may protect its more recent products from sales bans.

The document trail begins in 2010 when Samsung was working on its first major Android hit -- the Galaxy S -- and was working to get serious in the tablet market with a 10-inch direct competitor to the iPad.

In an email from Samsung design leader Hyesun "Sunny" Kim, concern is expressed that Samsung is studying Nokia Oyj. (HEX:NOK1V) to carefully, but has missed the driver of the state of the art -- Apple.

Writes Kim (p.173), "All this time we've been paying all our attention to Nokia, and concentrated our efforts on things like Folder, Bar, Slide, yet when our UX is compared to the unexpected competitor Apple’s iPhone, the difference is truly that of Heaven and Earth. It's a crisis of design."

Samsung's slides broke down the iPhone's assets (pg. 107), even using the word "copy" at some points (but only in reference to copying the hardware of the iPhone).

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An earlier Dec. 2008 breakdown (pg. 148) carefully studied the iPhone, discussing keys to its success. One of three drivers was the phone's "whimsical" character, and top on its list of attributes in that category was "list bounce". Coincidentally Samsung added list bounce to its only user interface, which Apple claims infringes on its patent on the feature.

The slide notes that the iPhone has extra "sensors" that were non-standard at the time (such as accelerometers, gyroscopes) and transition effects that made it "just plain cool".

"[The iPhone is] just plain cool" --Samsung market research

A second slide breaks down the design of the iPhone emphasis that it uses "few buttons", has a "minimal" design, and is "screen-centric". The overall feeling from the slides is that Samsung was carefully studying what made the iPhone tick and making a check list of features to add to its own product -- precisely the impression Apple's lawyers want to convey.

Samsung even looked for clues to Apple's marketing strategy. For example they analyze (p. 31) a Best Buy Comp., Inc. (BBY) training partnership, commenting that Apple compensates for the "deficiency of BBY e-learning system" with a program that bribes employees with free accessories to develop enthusiasm and products about Apple's products, making sales people pitch them harder and more effectively than other gadget-makers' designs.

A slide showing Samsung's first Android smartphone, the I7500 indicated that Samsung was concerned about the apps screen appearing to blatantly like it was imitating Apple's home screen. The early UI draft closely copied the iPhone, but the slide complained that the icon "container" (the layout) was "too iPhone like".

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The design was changed to a less similar design. But with the Galaxy S, the apps screen (not to be confused with the home screen) back-tracked and Samsung decided to imitate Apple after all.

Samsung considered copying the iPhone's interface (far left) with the I7500 (center left), but it ultimately rejected that idea, making the final design (center right) was designed substantially different from Apple's. The Galaxy S (far right), however, returned Samsung's UI to a closer copy of Apple's.

In a slide deck from Apple 2009 dubbed "UX Exploration study" (p. 179), Samsung market researchers suggested copying Apple's double-tap to zoom feature, commenting, "The UX of the iPhone can be used as a design benchmark."

"The [UI] of the iPhone can be... a design benchmark." --Samsung market research

Perhaps its not surprising that the phone drew comparisons at Google Inc.'s (GOOG) May 2010 Google I/O event. Samsung managers in emails (p. 176-177) passed around enthusiastic comments from developers, which included commentary on how much Galaxy S looked and felt like the iPhone.

Among the comments shared:

The menu looks just like iPhone. But I like it cause it looks familiar to me."

Galaxy S looks very similar to iPhone.

Likewise, others were taking note of similarities between Samsung's second major tablet release (dubbed P3 in the court filings), the Galaxy Tab 10.1. Google expressed concern (p. 205) that the Tab looked "too similar to Apple". Google ordered Samsung to "make it noticeably different, starting with the front side."

"Since [the Tab 10.1] is too similar to Apple, make it noticeably different"--Google to Apple

The Galaxy S launched in June 2010. Apple was not happy. It filed suit a 10 months later in April 2011. The suit may have been precipitated by failed negotiations in which Apple warned Samsung to stay away from the tablet market.

Samsung refused to back down, launching the Galaxy Tab 10.1 in June 2011. It is unclear whether Google's request differentiation from the iPad was included in that design, as the design Google was talking about being "too similar to Apple['s iPad]" was never pictured.

III. From Imitation to Originality

In an ideal world Apple would love to show that Samsung is still copying its handsets and tablets. But visually that does not appear to be the case.

Likewise the court documents, perhaps inadvertently, paint a picture that damages Apple's claim that Samsung continued to copy. In fact, they show the company in 2011 transitioned from looking to catch up with Apple in terms of product, to looking to "beat" Apple and "differentiate" its products past the iPhone.

Samsung called (p. 123) its campaign "S>A" (it commonly referred to Apple as (company) "A" throughout the slide decks) -- Samsung > Apple. In another deck (p. 113), dated Sept. 2011, Samsung writes, "Goal of next year -- BEAT APPLE". Humorously it writes that it is "lacking confidence" in that plan.

"Goal of next year -- BEAT APPLE"--Samsung, Sept. 2011

The company writes that keys to beating Apple include LTE modems, larger screens, and "aggressive pricing".

The company expressed concern that the Galaxy S III must be a "differentiated device" (versus the iPhone), but that it "currently may not be".

Again this paints a picture of a company who has learned via emulation, but is now looking to take things to the next level, going from copying to creation.

In a "top secret" Feb. 2012 document (pg. 165) Samsung brags, "U.S. Market Becoming a Two Horse Race Between Apple and Samsung". Samsung appeared to relish knocking its fellow Android smartphone maker HTC Corp. (TPE:2498) down a peg, even though its OEM market share still lagged behind Apple's in the U.S. market.

By 2011 Samsung was no longer looking to copy Apple. [Image Source: Samsung]

These documents all point to a new Samsung, a Samsung who increasingly felt that it could build its own UI and hardware that were better than Apple's. The slides foreshadowed Samsung's recent dramatic pass of Apple in global smartphone sales.

IV. Is Copying a Crime?

Arguably, copying Apple may have elevated Samsung slightly, but there's three major questions to answer -- was it illegal, if so did it continue, and lastly should it have been illegal?

The answer to the former question may be technically "yes", but that could change if the U.S. looks carefully at the prior art in software. Many of Apple's "innovations" (e.g. the bounce effect) were found to be invalid due to prior art in other regions, such as the UK. It is not unfathomable that Samsung could find a sympathetic U.S. court to give it a fair shot at validation as well.

Second, the case highlights a glaring flaw of our intellectual property system, in that by barring imitation, evolution is discouraged.

Samsung Galaxy Tab 10.1

The Galaxy S and Galaxy Tab 10.1 clearly copied aspects of the iPhone and iPad. But they also had elements that were clearly their own. In other words they weren't exact copies. And they eventually led to innovative new designs -- Samsung clearly has not continued to copy Apple to as great a degree.

One potential issue -- and which esteemed intellectual property experts like Judge Richard A. Posner -- have asserted -- is that there is an increasing amount of patenting of non-novel (not in the legal sense of the word, but in the philosophical context), simple ideas such that in some niches nearly every simple idea becomes patented.

Thus because of an irrational fear that casual imitation will lead to "cloning" (exact copies), the system is essentially preventing the learning and borrowing of ideas, reducing each individual or company to beating rocks together in a cave, trying to find a new way to start a fire because the obvious one has already been patented.